CHERILYNN CORNELL, Widow and Next of Kin of Gary Cornell v. AMERICAN STANDARD; SPECIAL FUND; THOMAS A. NANNEY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
August 30, 1996; 2:00 p.m.
NOT TO BE PUBLISHED
96-CA-0467-WC
CHERILYNN CORNELL, Widow and
Next of Kin of Gary Cornell
v.
APPELLANT
PETITION FOR REVIEW UNDER CR 76.25
OF THE WORKERS' COMPENSATION BOARD
WC-94-41351
AMERICAN STANDARD; SPECIAL FUND;
THOMAS A. NANNEY,
Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * * * * * * * * * * * * * * *
BEFORE:
DYCHE, HOWERTON, and SCHRODER, Judges.
HOWERTON, JUDGE.
Cherilynn Cornell (Cherilynn), widow and next
of kin of Gary Cornell (Cornell), petitions for review of an
opinion of the Workers' Compensation Board (Board) rendered
January 19, 1996.
The Board affirmed the decision of the
Administrative Law Judge (ALJ), which dismissed Cornell's claim
for benefits upon a finding that there was no causal relationship
between Cornell's exposure to asbestos while employed at American
Standard and his development of lung cancer.
record, we must affirm.
After reviewing the
Gary Cornell was employed by American Standard from
September 1, 1971, until the plant closed November 13, 1992.
Cornell worked as a helper preparing sinks and tubs for the
enamelling process, and later as a heater where he was required
to load and unload pieces from a furnace.
Following his
employment with American Standard, Cornell developed lung cancer
which was diagnosed on October 29, 1993.
In a letter to Cornell
in May of 1994, a Dr. Baeker opined that the lung cancer was
causally related to cigarette smoking and asbestos exposure.
Cornell filed his claim for benefits on October 6, 1994; however,
he died on November 20, 1994, and Cherilynn was substituted as
the claimant.
The evidence presented to the ALJ included the video
testimony of Cornell and the testimony of Jerry Bartlett, a
coworker of Cornell's.
Both testified that the firebrick lining
the sides of the furnace and the lining on the furnace doors
contained asbestos.
In addition, they each stated that the
aprons and gloves Cornell wore were made from asbestos.
However,
both admitted that they learned of the asbestos from third
parties, neither having personal knowledge of the location and
levels of asbestos present in the plant.
Additionally, Bartlett
testified that he was part of a study that the union performed
around 1984 regarding the presence of asbestos which revealed
asbestos was present in various areas where Cornell would have
been exposed.
However, the report was evidently never produced,
as there is no evidence of such in the record.
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Medical testimony was also presented from Dr. Thomas
Baeker, Cornell's treating physician, and Dr. Judah Skolnick.
Baeker stated that both Cornell's cigarette smoking and exposure
to asbestos were contributing factors to his lung cancer.
Skolnick also stated that asbestos exposure would have been a
substantial factor in causing the cancer.
Both doctors admitted,
however, that Cornell had provided the only information they had
regarding his exposure.
Furthermore, both conceded that it is
not medically possible to distinguish between the causes of lung
cancer when more than one contributing factor may exist.
American Standard presented testimony from Janice
McMonigal, who worked as an environmental safety coordinator and
participated in an asbestos abatement program at the American
Standard plant in 1985, as well as Neil Stamp, vice-president of
National Environmental Contracting, an environmental remediation
firm specializing in asbestos removal.
Both testified as to the
presence of asbestos in the plant and the removal actions that
were undertaken.
Stamp provided extensive information as to the
forms of asbestos and the dangers associated with exposure.
He
opined that the type of asbestos, if any, that Cornell was
exposed to did not likely create a risk of injury because it was
not friable, or in such a form as to be inhaled into the
respiratory system.
In the ALJ's opinion and order, he notes that both
doctors attributed asbestos exposure to Cornell's lung cancer.
However, he noted that those opinions were based upon the history
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given by Cornell, who admitted to having no personal knowledge as
to whether he was in fact exposed to asbestos.
The ALJ placed
great weight upon the testimony of McMonigal and Stamp in
concluding that at best there was only a possibility that
asbestos was a contributing factor, and since Cherilynn had not
satisfied the burden of proof, the ALJ dismissed the claim.
The
Board affirmed.
Cherilynn presented to the Board the same arguments she
now presents to this Court.
She contends that the ALJ and the
Board ignored compelling medical evidence indicating that
Cornell's lung cancer was work related and compensable.
disagree.
We
We agree that the general rule is that uncontradicted
medical testimony will be regarded as conclusive when the issue
is one that falls solely within the realm of medical expertise.
Mengel v. Hawaiian-Tropic Northwest and Central Distributors,
Inc., Ky. App., 618 S.W.2d 184 (1981);
Bullock v. Gray, Ky.
App., 296 Ky. 489, 177 S.W.2d 883 (1944).
However, as stated by
the Board, when a physician bases his opinion solely upon the
patient's self-reported history, the ALJ may disregard that
opinion when the underlying history is sufficiently impeached.
Osborne v. Pepsi-Cola, Ky., 816 S.W.2d 643 (1991).
Here, both doctors admitted that they had no
independent knowledge of any exposure Cornell may have had aside
from the history he provided.
The ALJ concluded that the
testimony of Stamp and McMonigal sufficiently impeached Cornell's
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reported history of exposure.
Thus, it was within the ALJ's
discretion to disregard the medical testimony.
Osborne, supra.
Cherilynn also argues that the ALJ and Board erred in
excluding statements made by Cornell to Doctors Baeker and
Skolnick regarding his asbestos exposure.
Cherilynn maintains
that the ALJ excluded the statements as hearsay in contravention
of KRE 803(4), regarding statements made for the purposes of
medical treatment or diagnosis.
We do not find this to be what
occurred.
The Board determined that the ALJ did not refuse to
admit the statements by Cornell contained in the doctors'
testimony because they were hearsay, but rather because the
statements themselves were incompetent evidence.
Cornell
testified that he had no personal knowledge of whether the
equipment he had contact with contained asbestos, but only the
information he had been told by coworkers.
Therefore, although
the statements made to the doctors were admissible under KRE
803(4), the statements themselves were incompetent because they
concerned matters that were not within the personal knowledge of
the declarant.
KRE 602.
As fact finder, the ALJ has the sole authority to judge
the weight, credibility, substance and inference to be drawn from
the evidence.
Where the evidence is conflicting, the ALJ has
the sole authority to determine whom and what to believe.
See
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
Further, the claimant in a workers' compensation case has the
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burden of proof and risk of persuasion, and if unsuccessful, the
question on appeal is whether the evidence is so overwhelming
upon consideration of the record as a whole as to compel a
finding in the claimant's favor.
Wolf Creek Collieries v. Crum,
Ky. App., 673 S.W.2d 735 (1984).
The ALJ determined that
Cherilynn had not, in fact, satisfied her burden of proof and we
cannot conclude that there exists compelling evidence to warrant
a decision otherwise.
As the ALJ's decision was supported by
substantial evidence in the record, it must be upheld.
Special
Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
The opinion of the Workers' Compensation Board is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR AMERICAN STANDARD:
Kenneth L. Sales
Patrick J. Donovan
Louisville, KY
William A. Miller, Sr.
C. Patrick Fulton
Louisville, KY
BRIEF FOR SPECIAL FUND:
Judith K. Bartholomew
Louisville, KY
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